Decision Date: 12/12/95 Archive Date:
12/12/95
DOCKET NO. 94-02 024 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to special monthly pension based on the need for
regular aid and attendance or on the veteran being
housebound.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The veteran had active service from June 1943 to December
1945. He has been in receipt of nonservice-connected
pension benefits since May 1987.
This appeal to the Board of Veterans' Appeals (the Board) is
from a rating action by the Department of Veterans Affairs
(VA) Regional Office (RO) in Houston, Texas, in November
1992. At his request, the veteran was scheduled to present
testimony at a hearing before a Member of the Board at the
RO in January 1994. The letter notifying him of the
hearing, dated December 28, 1993, was sent to an address in
Mexico City. An undated VA Form 119 reveals that the
hearing could not be confirmed since the RO could not call
Mexico. The veteran did not appear for the hearing
scheduled for January 17, 1994.
REMAND
Prior to late 1993-early 1994, the veteran had lived on a
rather regular basis in a VA Nursing Home following surgery
to remove his right leg. His disabilities are cited by the
RO are total knee disarticulation, right (90%), amputation
of all four fingers of the right hand, except the thumb (50
%); status post right hip fracture with hardware removed
(20%); left ankle fracture with pinning (10%) ; and
appendectomy (0%).
A report of examination undertaken after admission to VA
hospitalization in Long Beach in June 1992 reflects that the
veteran was unable to ambulate without support and
apparently did not do very well with support, in part due to
his missing fingers. The examiner clearly noted that he had
been seen only in that setting, and indicated that the
veteran needs help in a good many functions. He was in the
process of undergoing therapy and rehabilitation. The
veteran later described his situation as being confined to a
wheelchair and needing aid in numerous daily functions. It
is unclear what, if any, problems the veteran may have other
than those of a primarily orthopedic nature. The available
examination and outpatient reports are not current beyond
January 1993. Clinical records show that he has severe
peripheral vascular disease. This disability has not been
evaluated. One examiner has noted that the veteran has some
moderate hearing loss, but this has not been identified by
the RO in his rated disabilities.
In Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992), and
Abernathy v. Principi, 3 Vet.App. 461 (1992), the United
States Court of Veterans Appeals (Court) emphasized that
each disability in any pension-related case must be assigned
a percentage rating. This has not been accomplished for all
the claimed disabilities in the present case. This
development may be critical to any determination regarding
housebound status.
The Board finds that additional development is required.
The case is REMANDED for the following actions:
1. The RO should obtain copies of all current records of
treatment including from all VA facilities in California and
Texas (including outpatient clinics, hospitals and nursing
homes) in which the veteran has been evaluated or treated
since 1992, and these should be added to the claims folder.
Documentation concerning the veteran's participation in
rehabilitation programs should also be acquired and attached
to the claims folder, including all VR&E and Counseling
files.
2. The veteran should be requested to identify private
physicians who see him on an ongoing basis, including any
physicians or facilities in Mexico, and to provide any
necessary releases. The RO should obtain complete clinical
records of all treatment identified.
3. The RO should schedule the veteran for a comprehensive
VA general medical examination to determine the exact nature
and extent of all physical disabilities consistent with his
allegations and complaints and the clinical findings
demonstrated or suggested in clinical evidence of record.
If necessary pertinent specialists should be requested to
review the case as well. All necessary tests and studies
should be accomplished, and all clinical manifestations
should be reported in detail, with specific opinions
expressed by the examining physicians as to the veteran's
overall ability to maintain himself in daily conditions of
life as described in applicable regulations. The claims
folder must be made available to the examiner.
4. The RO should clarify the veteran's desires relating to
a personal hearing and carry these out within pertinent
regulations and guidelines.
5. The RO should then readjudicate the veteran's claim,
considering entitlement to special monthly pension benefits
under all applicable standards. The rating decision should
list all of the veteran's disabilities and the percentage
evaluation assigned each disability. If additional pension
benefits based on the need for aid and attendance or on
housebound status remain denied, the RO should provide the
veteran and his representative an appropriate Supplemental
Statement of the Case. The veteran and his representative
should have ample opportunity to respond.
Thereafter, the case is to be returned to the Board for
further appellate review. The purpose of this REMAND is to
obtain additional evidence and ensure that the veteran is
afforded all due process of law. The Board intimates no
opinion, either factual or legal, as to the ultimate
conclusion warranted in this case. No action by the veteran
is required until he is contacted by the RO.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This action has been
taken in accordance with the Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___
(1994), and is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1995).
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